Didymus Mutasa and Temba Mliswa v The Speaker of the National Assembly and Others

The applicants were Members of the National Assembly elected on 31 July 2013 on the ZANU-PF party ticket. Following internal party squabbles, a party meeting in December 2014 resolved to suspend the applicants from ZANU-PF. On 18 February 2015, the ZANU-PF Politburo decided to expel both applicants from the party. On 19 February 2015, the Secretary for Administration of ZANU-PF wrote to the Speaker of the National Assembly (first respondent) notifying him that the applicants had ceased to be members of ZANU-PF. The first respondent received this letter on 23 February 2015. The first applicant wrote to the Speaker on 27 February 2015 protesting that the expulsion was null and void. The Speaker replied on 2 March 2015 stating he was obliged under s 129(1)(k) of the Constitution to act upon the notification from the political party. On 3 March 2015, the Speaker announced that the applicants' seats in the National Assembly had become vacant. The applicants challenged this, claiming violations of their constitutional rights.

• What is the correct interpretation of s 129(1)(k) of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013?
• Does the Speaker of the National Assembly have a duty to inquire into the legality of a party's termination of a Member's party membership before declaring a parliamentary seat vacant?
• Does the Speaker have power to create a vacancy in a parliamentary seat, or does the vacancy occur by operation of law?
• Did the Speaker's announcement that the applicants' seats had become vacant violate their constitutional rights under ss 56(1), 67(3)(b), 68, and 69(3) of the Constitution?

The application was dismissed with costs on an attorney and client scale in favor of the first respondent.

Section 129(1)(k) of the Constitution, interpreted according to its ordinary and grammatical meaning, creates a vacancy in a parliamentary seat by operation of law when two cumulative requirements are met: (1) a Member of Parliament has ceased to belong to the political party of which they were a member when elected, and (2) the political party has declared this fact by written notice to the Speaker or President of the Senate. The Speaker has no power or duty under s 129(1)(k) to inquire into the legality of the termination of party membership - such matters are internal to political parties and must be resolved through party processes or by courts before the written notice is sent. The Speaker's role is limited to announcing a vacancy that has already occurred by operation of law upon receipt of proper notice. Conduct performed in accordance with a constitutional provision cannot violate other provisions of the Constitution, as the Constitution must be interpreted harmoniously as a coherent whole.

The Court observed that if a Member of Parliament is unhappy with the manner in which their party membership was terminated, they have legal remedies for challenging the legality of the termination before the political party forwards the written notice required by s 129(1)(k) to the Speaker. The Court noted that it would be absurd to conclude that an act done in terms of provisions of the Constitution can violate someone's rights under the same Constitution. The Court also emphasized that one provision of the Constitution cannot be used to defeat another provision, and different provisions must be interpreted to operate harmoniously to achieve the Constitution's objectives.

This judgment authoritatively interprets s 129(1)(k) of the Zimbabwe Constitution concerning the recall of Members of Parliament by their political parties. It establishes important principles regarding: (1) the limits of parliamentary authority in matters of party membership; (2) the doctrine that vacancies occur by operation of law rather than by parliamentary declaration; (3) the principle that internal party disputes regarding membership termination must be resolved within party structures or by courts, not by Parliament; and (4) the harmonious interpretation of constitutional provisions such that lawful conduct under one provision cannot violate rights under another provision. The case has significant implications for the separation of powers between political parties and Parliament, and for understanding when parliamentary seats become vacant in Zimbabwe's constitutional framework.